Griffin v. Pate: Does the meaning of “infamous crime” come down to what Justice Appel thinks?

This morning, the Iowa Supreme Court will hear argument over what kinds of felons (if any) can vote. The Iowa Constitution says that a person who’s been convicted of an “infamous crime” can’t be an “elector” (which means they can’t vote). But which crimes are “infamous”?

Two years ago, a majority of the Iowa Supreme Court concluded that crimes don’t rise to infamy unless they fall into the felony category. (So no misdemeanors). But the justices split evenly, 3-3, on whether the constitutional prohibition applies to all felonies: Chief Justice Cady and Justices Hecht and Zager concluded that felonies aren’t infamous unless they “might compromise the integrity of our process of democratic governance through the ballot box”; Justice Wiggins argued that any crime that carries a potential prison sentence is an infamous crime (that includes all felonies); and Justices Mansfield and Waterman concluded that all felonies are infamous. (A more detailed summary of each position ishere.)

Justice Appel was recused from the case (presumably because his wife was running for Congress), so we don’t know what he thinks about the issue. As a result, it’s tempting to see this morning’s argument as an argument to one justice instead of seven. Everyone else has weighed in, so it’s just a matter of where Justice Appel comes down, right?

Maybe not. When the Court took up this issue two years ago, the justices were moving at lightening speed. They heard oral argument just five days after getting the appeal and only two days after receiving the appellee’s brief. And they issued their decision (with the three separate opinions described above) just sixdays after oral argument.

To put that into perspective, a constitutional case of this magnitude usually takes well over a year from appeal to final decision. And the justices usually give themselves at least three to four months after oral argument to work on their opinions.

So don’t be surprised if Justice Appel isn’t the only one who’s still wrestling with this issue. Having had more than a couple days to think about it, some of the justices could easily change their mind. It’s even possible (though still not likely) that we could get a unanimous ruling.